Alaska Senate Bill 222

Summary

Alaska Senate Bill 222 would expand the state’s existing law barring the distribution of “indecent material” to minors to apply to any type of distribution, rather than merely by computer. “Indecent material” is defined to include any depiction of actual or simulated sexual penetration; lewd touching or exhibition of the genitals, anus or female breast; masturbation; sexual masochism or sadism.

The bill was amended to bar the distribution of “harmful to minors” material, with a definition for “harmful to minors” that follows the Miller/Ginsberg test. However, the bill would apply to material generally available on the internet. The bill would also make it illegal to disseminate sexually explicit content that depicts adults who appear to be minors or computer generated images that appear to be minors.

Analysis

As introduced: Alaska’s existing “harmful to minors” law is almost certainly unconstitutionally overbroad. Though minors do not enjoy the protection of the First Amendment to the same extent as adults, the U.S. Supreme Court has ruled that they are entitled to significant protection. Governments may restrict minors’ access to some sexually explicit speech but it is a narrow range of material determined by a three-prong test called the Miller/Ginsberg test. The existing law and this bill restrict material beyond that test.

The existing law’s application to the internet is also likely unconstitutional. It would still be unconstitutional even if it followed the Miller/Ginsberg test. Courts have held that “harmful to minors” restrictions effectively forces websites to bar access for both adults and minors, since there is no way of knowing who is accessing the material. As a result, it deprives adults of their First Amendment right to access material legal for them. The only exceptions to these decisions have been laws that were limited to speech illegal for minors under the Miller/Ginsberg test and were intended to be communicated to a person that the speaker has specific, rather than general, knowledge is a minor or believes to be a minor.

As amended: Limiting the material subject to prosecution to speech that falls under the Miller/Ginsberg test is a significant improvement, but the bill still applies the restriction to material generally available on the internet. As noted above, this is likely unconstitutional, as it deprives adults of their First Amendment rights to access that material.